As filed with the Securities and Exchange Commission on June 13, 2002
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------
INTRUSION INC.
(Exact name of registrant as specified in its charter)
Delaware 75-1911917
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1101 East Arapaho
Richardson, Texas 75081
(Address of principle executive offices)
1995 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
OF INTRUSION INC.
(FULL TITLE OF THE PLAN)
Jay R. Widdig
Vice President, Chief Financial Officer, Treasurer and Secretary
Intrusion Inc.
1101 East Arapaho
Richardson, Texas 75081
(972) 234-6400
(Name, address and telephone number, including area code, of agent for service)
Calculation of Registration Fee
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Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of
registered registered(1) share(2) price(2) registration fee
---------------------------------------------------------------------------------------------------------------
Common Stock, $0.01
par value per share 100,000 $1.17 $117,000 $10.76
---------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the
"Securities Act"), shares issuable upon any stock split, stock dividend or
similar transaction effected without the Registrant's receipt of consideration
with respect to the shares covered hereby are also being registered hereunder.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) of the Securities Act on the basis of the average of
the high and low sales prices of the Common Stock of Intrusion Inc. as
reported on the Nasdaq Stock Market, National Market System, on June 10, 2002.
PART I*
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed or to be filed by Intrusion Inc.
(the "Registrant") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference herein:
(a) The Registrant's Annual Report on Form 10-K filed with the Commission on
March 30, 2002 for the fiscal year ended December 31, 2001 which includes the
consolidated financial statements of the Registrant and its subsidiaries and
certain supplementary data for the fiscal year ended December 31, 2001
together with the report thereon of Ernst & Young LLP, independent auditors.
(b) The Registrant's Quarterly Report on Form 10-Q filed with the Commission
on May 3, 2002 for the fiscal quarter ended March 31, 2002 which includes the
consolidated financial statements of the Registrant and its subsidiaries for
the quarter ended March 31, 2002.
(c) The description of the Common Stock of the Registrant incorporated by
reference in its Registration Statement on Form 8-A (File No. 0-20191) which
was declared effective by the Commission on May 21, 1992, pursuant to Section
12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendment or report filed for the purpose of updating
such description.
In addition, all documents filed by the Registrant subsequent to the date of
this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act, prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the respective dates of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained
herein or in any subsequently filed document which also is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration statement.
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation, as amended and restated to
date, relieves its directors from liability for monetary damages to the
fullest extent permitted by Delaware law. Section 145 of the Delaware
General Corporation Law provides, in effect, that any person who was or is a
party or is threatened to be made a party to any action by reason of the fact
that he is or was a director, officer, employee or agent of the Registrant
may and, in certain cases, must be indemnified by the Registrant against
judgments, fines, amounts paid in settlement and expenses (including
attorneys' fees) reasonably incurred by him as a result of such action, and
against expenses (including attorneys' fees), if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
Registrant's best interest and with respect to any criminal proceeding in
which such person had reasonable cause to believe his conduct was unlawful.
This indemnification does not apply, in a derivative action, to matters as to
which it is adjudged that the director, officer, employee or agent is liable
to the Registrant, unless upon court order it is determined that, despite
such adjudication of liability, but in view of all the circumstances of the
case, he is fairly and reasonably entitled to indemnity for expenses, that
the court deems proper.
Article Six, Section 2 of the Registrant's Certificate of Incorporation, as
amended and restated to date, provide, in general, that no director of the
Registrant shall be personally liable for monetary damages for breach of the
director's fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the Registrant or its
stockholders; (ii) an act or omission not in good faith or an act or omission
that involves intentional misconduct or a knowing violation of law; (iii) any
liability under Section 174 of the Delaware General Corporation Law
(pertaining to unlawful payment of a dividend or an unlawful stock purchase
or redemption); or (iv) a transaction from which the director received an
improper personal benefit.
Article Ten of the Registrant's Certificate of Incorporation, as amended and
restated to date, and Article Six of the Registrant's Bylaws, provide, in
general, that the Registrant shall indemnify its directors and officers under
the circumstances defined in Section 145 of the Delaware General Corporation
Law and gives authority to the Registrant to purchase insurance with respect
to such indemnification.
The Registrant has entered into separate Indemnity Agreements with each of
its directors and certain of its executive officers (each, an "Indemnitee"),
under which the Registrant will, upon proper request of the Indemnitee,
indemnify any Indemnitee if such Indemnitee is a party to or is threatened to
be made a party to or is otherwise involved in any third party proceedings or
proceedings by or in the right of the Registrant to procure a judgment in its
favor by reason of the fact that the Indemnitee is or was a director and/or
officer of the Registrant or is or was serving at the request of the
Registrant as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against all expenses,
judgments, fines and penalties, actually and reasonably incurred by the
Indemnitee in connection with the defense or settlement of any of such
proceedings; provided that (i) in the case of a third party proceeding, the
Indemnitee acted in good faith and in a manner which the Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Registrant, and in the case of a criminal proceeding, in addition, that the
Indemnitee had no reasonable cause to believe that his conduct was unlawful,
(ii) in the case of a proceeding by or in the right of the Registrant, the
Indemnitee acted in good faith and in a manner which the Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Registrant and in which the Indemnitee shall not have been adjudged to be
liable to the Registrant for negligence or misconduct in the performance of
the Indemnitee's duty to the Registrant, unless the court in which such
proceeding is brought determines that the Indemnitee is fairly and reasonably
entitled to indemnity for expenses as such court deems proper, and (iii) in
the case of a proceeding by or in the right of the Registrant, the Indemnitee
is only indemnified against expenses and not against any judgment, fines or
penalties. Notwithstanding the above, the Registrant shall indemnify an
Indemnitee for all expenses incurred in connection with any proceedings to
the extent that the Indemnitee has been successful in defense of any such
proceeding, or in defense of any claim, issue or matter therein. The
Registrant will also, upon proper request of the Indemnitee, pay in advance
the expenses incurred by the Indemnitee in any of the above proceedings, if
the Indemnitee shall undertake to repay such amounts to the extent it is
determined that the Indemnitee is not entitled to indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following documents are filed as Exhibits herewith pursuant to Item 601
of Regulation S-K or are incorporated in this Registration Statement by
reference to previous filings with the Commission as noted.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
4.1 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement on Form 8-A, as amended,
and the exhibits thereto, which are incorporated herein by
reference pursuant to Item 3(c) of this Registration Statement.
5.1 Opinion of Brobeck, Phleger and Harrison LLP.
23.1 Consent of Independent Auditors.
23.2 Consent of Brobeck, Phleger and Harrison LLP, (included in
Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
99.1 Intrusion Inc. 1995 Non-Employee Directors Stock Option
Plan, as amended and restated.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act; (ii) to
reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration
Statement; and (iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the termination of
the offering; and
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 6 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. If a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer, or
controlling person of the Registrant in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Richardson, State of Texas, on the 12th day of
June, 2002.
INTRUSION INC.
(REGISTRANT)
/s/ G. Ward Paxton
------------------------------------------
G. Ward Paxton
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
We, the below signed officers and directors of the Registrant, do hereby
constitute and appoint G. Ward Paxton and Jay R. Widdig, with full power of
substitution, our true and lawful attorneys-in-fact and agents with full
power and authority, to do any and all acts and things in our names in the
capacities indicated which G. Ward Paxton and Jay R. Widdig may deem
necessary or advisable to enable the Registrant to comply with the Securities
Act and any rules, regulations and requirements of the Commission in
connection with this Registration Statement, including specifically, but not
limited to, the power and authority to sign for us, or any of us, in our
names in the capacities indicated, and any and all amendments (including
post-effective amendments) to this Registration Statement; and we do hereby
ratify and confirm all that G. Ward Paxton and Jay R. Widdig shall do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
---------- ------ ----
/s/ G. WARD PAXTON Chairman of the Board, President,
-------------------------- Chief Executive Officer and Director June 12, 2002
G. Ward Paxton (Principal Executive Officer)
/s/ T. JOE HEAD Vice Chairman of the Board and June 12, 2002
-------------------------- Director
T. Joe Head
/s/ JAY R. WIDDIG Chief Financial Officer, Vice
-------------------------- President, Secretary and Treasurer June 12, 2002
Jay R. Widdig (Principal Financial and Accounting
Officer)
/s/ J. FRED BUCY, JR. Director June 12, 2002
--------------------------
J. Fred Bucy, Jr.
/s/ GRANT A. DOVE Director June 12, 2002
--------------------------
Grant A. Dove
/s/ DONALD M. JOHNSTON Director June 12, 2002
--------------------------
Donald M. Johnston
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
4.1 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement on Form 8-A, as amended,
and the exhibits thereto, which are incorporated herein by
reference pursuant to Item 3(c) of this Registration Statement.
5.1 Opinion of Brobeck, Phleger and Harrison LLP.
23.1 Consent of Independent Auditors.
23.2 Consent of Brobeck, Phleger and Harrison LLP, (included in
Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
99.1 Intrusion Inc. 1995 Non-Employee Directors Stock Option
Plan, as amended and restated.